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Tuesday, 5 May 2015

Land Law

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Land Law

Compare and contrast how mortgagees and landlords can repossess property in situations of default by the mortgagor or tenant. Discuss whether you think any difference is justified.
In the Landlord Tenant Act, the tenants have the legal liability of repairing their flats and the landlord is under no obligation to do the same. This however is restricted to the fact that the landlord did not provide any legal ramifications and liability on the covenant with the tenant. In the occurrence that the landlord agreed to undertake some duties in the course of the lease, the tenant is under no obligation to repair prats of the building that maybe damaged. If the lift is not working or the stairs are damaged, it is the obligation of the landlord to ensure that the same is repaired. If not, the tenant can take the necessary legal steps that would end up in their favour regarding on how the facts are presented and the terms of the lease agreement.
The landlord is legally bound to undertake due diligence and ensure that services towards the building are undertaken. Such services include water and lighting. This is because, the tenant cannot be hold responsible for the collective damage of services that affects almost everyone in an apartment block. The lease agreements are very specific on the duties of each of the parties involved. An example of such regulations is that tenants are always obliged to use the building or the flat based on the stipulation of the agreements. Bright, (2007) states that if a client leases an apartment for personal use then later turns the same for commercial business, the landlord can cancel the lease agreement and the tenant is not liable to any of the damages accrued. In addition, some landlords are very specific regarding what activities should be undertaken in an apartment block or a commercial building.
Landlords having granted a lease agreement to the tenant should minimize the level of interference in what the tenant does. Such interference should only occur if the situation warrants for any interference. The law is very clear on who takes the blame in relation to any conflict that may arise from an agreement between a landlord and a tenant. In most cases, landlords fail to issue any warranty regarding the repair of any broken facilities of the building in what is known as ‘let the lessee beware’ (caveat lessee). However, there is a limited assumption in this case where the law only implies and does not state on the situation of a building during tenancy (Smith v. Marrable).The implication here is that the landlord is aware of the state of the building during before the tenancy and any changes or damages to the building are held against the tenant.
In most cases, the courts are aware that the tenants are in no position to negotiate effectively with the landlords owing to the demand for housing. In Liverpool City Council v. Irwin, which mainly concerned the liability of the landlord regarding maintenance, the judges were ‘reasonable’ to discredit past precedence in the same area and use reason to rule in favour of the tenant. However, there were still some judges who dissented with the ruling saying that the law must be ‘implied’ in cases involving the liability of the landlord to the tenant. However, tenancy issues are much complicated. Assuming that the lease of a building expires after 999 years, it is very likely that none of the parties involved will be around to experience the completion of the lease. During this period, a lot of this will have happened. The building might have changed ownership several; times bringing in a new landlord and a new tenant who were not party to the original lease agreement. Such a situation bring in serious legal complications regarding the liability of the new landlord or the new tenant and how the said parties can execute any of the terms agreed upon on the original lease.
The Landlord and Tenant (Covenants) Act 1995 implies that provides a clear distinction of what are regarded as new and old leases. The distinction between the two is that both leases offer discrete obligations and liability on new parties introduced to the lease, pursuant to the Ac, a lease may have aa covenant where the tenant restricts the landlord from executing preference actions on the lase. For an absolute covenant, the tenant is legally bound not to sublet a building pursuant to the lease agreement. However, the alienation of the lease can be altered to disqualify the absolute powers of the landlord and introduce a new agreement saying that the tenant can only sublet with prior agreement with the landlord. New leases however offer some lifeline for the tenants. The new leases have what is called qualifying lease that seeks to compel landlords to allow the tenants sublet a building if there was a prior agreement on the same. The landlord however can impose restrictions on the tenancy agreement if the conditions set to impose indicate that the landlord is not being unreasonably withholding consent.
Tenants can forfeit a building if any of the pre-set conditions in the lease agreement are violated. Such violations include failure to pay rent, agreements in relation to repair of buildings, subletting or selling a building contrary or without the consent of the landlord and alteration of the premises. Most of the agreements contained in the lease agreement are mostly signed by the tenant in accordance to the situation at hand. At this point, the landlord is considered as having the upper hand in setting the rules and regulations regarding the covenant. However, the landlords themselves can also violate some of the covenants contained in a lease agreement thus allowing the tenant to sell a building. Such violation include the obligation of repair and to insure.Discuss the extent to which the Variation of Trusts Act 1958 mirrors the power of adult beneficiaries to vary the trust under Saunders v Vautier.
The major rule in trusteeship is that the settler’s wishes are supposed to be executed to the latter. However, there are various circumstances that may arise and necessitate the variation of the settler’s wishes but under the consideration that such a variation does not necessarily warrant a court process. In general law, it is assumed that the trust instrument is not in place to confer powers to undesirable or relatively parties not involved in the original process but rather to allow discretionally powers among the trustees.The rule in Saunders v Vautier
The ruling in Saunders v Vautier allowed trustees to effect any variation in the absence of any express powers as provided by the statutory law. The ruling argued that provided that all the trustees are adults sui juris and the fact that they have collectively agreed to settle amongst themselves the trust property, the process can be carried out if at all there is no objection from an individual within the trust unit. In the Trusts of Land and Appointment of Trustees Act 1996,(6,7) dictates that the trust of land is not just inclusive of the material property that is land but rather, any proceeds that maybe derived from the sale of the said land. This acts also conveys extra legal rights for the subdivision of trust land including conveying the partitioned land to the beneficiaries. Now, in law it is assumed that there is bound to be some conflict between the trustees and the beneficiaries. Matthews, (2006) argues that in such situation, the law is very clear on who the beneficiaries should complain to in the occurrence that there is a complaint against the trustees.
The application of the Saunders v Vautier can be seen to imply and create precedence in relation to how trustee of a trust should be defined and allowed to share the assets. In simple terms, if an individual decides to leave his grandchildren who are all alive at the time of his death £10,000 each, the trustee is allowed to hold the money for all the beneficiaries until they are of legal age as expressed in the trust. This implies that the grandchildren cannot compete under the legal structure to hold the amount before the trust can be executed. For the trust rule to be applied, the trustees must attain a certain age as dictated in the trust. The concept of concept of consent however comes in when particularly dealing with assets and property. The consent between all the beneficiaries can subvert the court process and agree amongst themselves to execute the trust.Southgate v Sutton [2011] EWCA Civ 637 the Court of Appeal (Mummery, Smith and Wilson LJJ)
In Southgate v Sutton, the Court of overturned an earlier decision by a judge from a lower court that had granted the trustees to create a sub fund which was considered contrary to the legal provision that regulate the trust instrument. The trustees had applied for powers to create a sub-fund despite most of the trustees having interest in income over all the trust assets. The judges ruled that by creating a sub fund, the trustees who earned interest over all the trust assets were subverting the course of the trust instrument and the legal ramifications that would arise from the fact that some of the trustees resided in the U.S while others were in the U.K. The overall ruling was that the power to create a sub fund was not interest and therefore the court had no power to create the same.
One of the major characteristics of trusts is that they are subject to regulatory authorities as conferred by the law. Ina addition, trust are considered as liability to a country owing to the fact that they are not liable to any tax remits despite the heavy allowances that is charged by most trust organization. This is the major reason why it is considered extremely beneficial to have an authority that governs and regulates trusts. “Trustees that are under charitable trusts are under Charity Commission where the charitable trustees are required by law to submit their annual reports” (Pearce et al, 2010). The commissioners of the Charity Mission are obligated ay the law to discipline any trustees found to have acted contrary to what the law dictates. In addition, trusts are subject to the occupational pension trusts that regulate retirement pensions that are remitted by trusts under this category. What is important to note is that trusts are very flexible legal devices that are at the discretion of the employers in such a way that the employers are able to choose the trustees themselves. This means that employers have obsolete control of the trustees and trust but this does not mean that chances of fraud are zero.
References
Bright, S. (2007). Landlord and Tenant Law in Context. Hart Pub
Matthews, P. (2006). The Comparative Importance of the Rule in Saunders v. Vautier. LQR, 122, 266.Liverpool City Council v. Irwin
Pearce, R., Stevens, J., & Barr, W. (2010). The law of trusts and equitable obligations. Oxford University Press.Smith v. Marrable
Southgate v Sutton [2011] EWCA Civ 637 the Court of Appeal (Mummery, Smith and Wilson LJJ)